Dream Palace of the Goo-Goos
What do the campaign-finance reformers really want?
11:00 PM, Mar 13, 2005 • By SCOTT W. JOHNSON
The First Amendment itself speaks to the point with great clarity: "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . " And there is no gainsaying that the core purpose of the First Amendment is the protection of political speech. Yet the Supreme Court has beat a remarkable retreat in the face of the congressional onslaught on political speech in the name of campaign-finance reform. In its decision affirming the constitutionality of the basic provisions of the McCain-Feingold bill, the Supreme Court has already demonstrated that it cannot be counted on to protect the right of free speech in the context of campaign-finance law. In affirming the constitutionality of the McCain-Feingold bill's key provisions, the court cut Congress substantial slack to regulate otherwise protected speech in the name of "preventing corruption or the appearance of corruption."
Can the Federal Election Commission be counted on to exercise the kind of regulatory restraint regarding political speech on the Internet that will prevent a First Amendment issue from arising? Whether or not it can, a free people should not have to look to the discretion of regulators for the protection of their rights. How is it that we have we come to this pass?
EVERY REFORM implies an ideal state or condition to which the reformer aspires. The ideal embedded in the First Amendment is that of unrestrained speech keyed to the constitutional system of self-government. What is the ideal state suggested by the logic of campaign-finance reform?
Perhaps the most revealing passage in the hundreds of pages generated by the Supreme Court justices in their opinions on McCain-Feingold comes in Justice Scalia's dissent. Scalia notes the usual good-government rhetoric regarding "the prevention of corruption or the appearance of corruption" in which campaign-finance reform always comes wrapped. He also takes a look under the wrapping:
[L]et us not be deceived. While the Government's briefs and arguments before this Court focused on the horrible "appearance of corruption," the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to "crack cocaine," 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), "drive-by shooting[s]," id., at S879 (remarks of Sen. Durbin), and "air pollution," 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). There is good reason to believe that the ending of negative campaign ads was the principal attraction of the legislation. A Senate sponsor said, "I hope that we will not allow our attention to be distracted from the real issues at hand-how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don't aid our Nation's political dialog." Id., at 20521--20522 (remarks of Sen. McCain). He assured the body that "[y]ou cut off the soft money, you are going to see a lot less of that [attack ads]. Prohibit unions and corporations, and you will see a lot less of that. If you demand full disclosure for those who pay for those ads, you are going to see a lot less of that . . . ." 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g., 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) ("This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves"); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) ("These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal . . . . We have an opportunity in the McCain-Feingold bill to stop that . . ."); 145 Cong. Rec. S12606--S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) ("I think these issue advocacy ads are a nightmare. I think all of us should hate them . . . . [By passing the legislation], [w]e could get some of this poison politics off television").
Here Scalia hits the mother lode: He discovers that, in one sense, incumbent officeholders tend to have a profound disdain for politics. The ideal of incumbent officeholders promoting campaign-finance reform is freedom from criticism, especially at election time. Indeed, these incumbent officeholders seem to view elections as an inconvenience to their exercise of power.